2316501 (Refugee) - [2025] ARTA 962

2316501 (REFUGEE) [2025] ARTA 962 (21 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2316501
Tribunal:General Member Genevieve Hamilton
Date:21 March 2025

Place:Melbourne
Decision:The Tribunal affirms the decision under review.
General Member G Hamilton
Statement made on 21 March 2025 at 12:18 pm
CATCHWORDS
REFUGEE – Protection Visa – Vietnam – race – ethnic group Vietnamese – religion – Catholic – participation in protest activities against the Vietnamese government – associated with Viet Tan – inconsistent evidence – not satisfied that the applicant faces a real risk of serious or significant harm – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 46, 65, 91, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
DBB16 v MIBP (2018) 260 FCR 447
MIAC v SZQRB [2013] FCAFC 33
MICMSMA v CBW20 [2021] FCAFC 63
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
BACKGROUND

This is a review of a decision refusing to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applied for the visa on 21 June 2017. The delegate refused to grant the visa on 28 September 2023. The decision was lodged with the review application.
The applicant arrived in Australian at Ashmore and Cartier Island reef by boat without a visa on [date] April 2013. On 14 October 2014 he was granted a short temporary Class UJ Subclass 499 (Humanitarian Stay) visa and associated a Class WE Subclass 050 Bridging Visa E. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime.
On 11 February 2016, the Minister lifted the s s46A(1) bar to permit the applicant, as an unauthorised maritime arrival, to apply for a further protection visa. The applicant lodged a protection visa application on 21 June 2017 (the first application).
Subsequent jurisprudence caused confusion about the validity of the application. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands during the period the applicant arrived, was not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Migration Act 1958 (Cth) (the Act)). The Department notified the applicant in June 2020 that his application was therefore invalid due to s91K because he had failed to leave Australia after his subclass 449 visa ceased. The bar was purportedly lifted, and the applicant invited to apply for another protection visa.
The applicant lodged another protection application on 6 July 2020 (the second application). That application was refused, and on review at the AAT the refusal was affirmed (in March 2023). With the application for review of the second application, the applicant lodged a copy of the delegate’s decision.
However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K did not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands because the subclass 449 visa itself was invalid, Ashmore and Cartier at the time not being properly excised and therefore not offshore. The first application was therefore valid. The Department notified the applicant of this in March 2023 and proceeded to decide the application. (The second application was also valid, as it was lodged before the first was refused and therefore not prevented by s 48A).
The applicant attended a hearing of the Tribunal. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR PROTECTION VISA
Under section 65(1) of the Act a visa may be granted only if the decision maker is satisfied that the criteria for the visa prescribed in the Act are met.
The criteria for a protection visa are relevantly set out in s 36 of the Act. An applicant must meet one of the alternative criteria in s 36(2). Generally speaking, they must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion (s 36(2)(a)), or on ‘complementary protection’ grounds (s 36(2)(aa)), or be a member of the same family unit as such a person.
Under s 36(3) Australia does not have protection obligations to an applicant who has not taken all possible steps to avail themselves of a right to enter and reside in a third country.
Refugee
Refugee is defined in the Act. A person is a refugee if they are outside the country of their nationality (of if they have no nationality, their country of former habitual residence) and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.
One or more of the above-listed reasons must be the essential and significant reason or reasons for the persecution: s 5J(4)(a). Further, the persecution must involve systematic and discriminatory conduct: ss 5J(4)(b), (c).
The criterion in s 5J(1) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, but also imposes an objective standard, that there be a real chance the person would be persecuted. A 'real chance' is one that is not remote or insubstantial or a far-fetched possibility: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The persecution must involve serious harm such as a threat to the person’s life or liberty or significant physical harassment or ill treatment, significant economic hardship that threatens their capacity to subsist, or denial of access to basic services or capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (ss 5J(4) and (5)).
A person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country (ss 5J(2) and 5LA). A person does not have a well-founded fear of persecutionif the person could take reasonable steps to modify their behaviour to avoid persecution (s 5J(3), which also gives examples of types of modifications that are not required, such as concealing one’s religion, political opinion, race or sexual orientation).
In determining whether the person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless they satisfy the Minister that they engaged in the conduct for a reason other than to strengthen their claim to be a refugee (s 5J(6)).
Complementary Protection
If a person is found not to meet the refugee criterion, they may still be a person to whom Australia has protection obligations if there are substantial grounds to believe that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm. S 36(2A) defines significant harm as arbitrary deprivation of life, carrying out of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. “Real risk” has the same meaning as “real chance”: MIAC v SZQRB [2013] FCAFC 33.
Arbitrary deprivation of life and the death penalty carry their ordinary meanings. Torture and cruel or inhuman treatment or punishment both involve intentionally causing severe pain or suffering, whether physical or mental. Degrading treatment or punishment is defined as intentionally causing extreme humiliation.
Under s 36(2B) Australia does not have complementary protection obligations where:
·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that they will suffer significant harm;
·the applicant could obtain protection from an authority of the country, such that there would not be a real risk that the non-citizen will suffer significant harm; or
·the risk is one faced by the population of the country generally and not by the applicant personally.
CLAIMS AND EVIDENCE
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
According to the record of his arrival interview on 4 July 2013, the applicant said his name was [name] and he was born in [year] in Vietnam. He was born in [Village 1] Village, Nghe An Province. He was Catholic (and wanted to go to Mass), and his ethnic group Vietnamese. His emergency contact was his adoptive mother ([name]) who moves between Vientiane (Laos) and [a] Village (Nghe An). He is not in contact with his birth parents (father [name], age unknown, mother [name], age unknown, both live in [Village 1] Village). But his adoptive parents are in contact with them. He said he had a step-father (meaning adoptive father) with the family name [name], age unknown, based in Vientiane. He has a biological sister, age unknown, location unknown. He also has an adoptive (step) brother born [year] named [name], and adoptive (step) sister [2008], and another baby sibling was born to his adoptive parents in [year] but he does not know the name or gender of that baby.
The applicant said he left Vietnam because his family is poor, his adoptive father did not treat him well and he wanted to learn, and have more care, and better nutrition. His adoptive father would swear at him and put him down and accuse him of being dependent, and overworked him. The applicant declared nil political involvement, nil arrests or detentions. There were no armed groups or fighting in his area. If he went back to Vietnam he would not be able to study, and his biological parents would have difficulty supporting him. His adoptive mother helped with the money for the smuggler, who told him he could work off the rest.
The applicant claimed he was only [age] and if not allowed to work, he would like to study. The interviewer noted that the applicant was very concerned about “not being a minor now”. He said he had four years of primary education in [Village 1]. Then he moved to Vientiane and worked in his adoptive mother’s [store]. He was there illegally for five years. He was adopted out for financial reasons and did not know if it was a legal arrangement. After that he was fishing in [Country 1] for the people smuggler who did not pay him, but his work went towards his payment for being smuggled on another boat to [Country 2] in approximately March 2013. He said no passport was used. The fisherman suggested he go to Australia, as he could study there and going home would be a burden for his parents.
In the first application, the applicant said he was born [date]. His name is [name]. He acknowledged he had previously given a different name (he said to protect himself from Vietnamese police), and a different birth date. He confirmed he is from [Village 1], District 1] district. He is a Vietnamese citizen by birth. He said he is contact with his mother and father in [Village 1] ([address] phone number provided), about once a week. He arrived in Australia on [date] April 2013. He said he had used a passport, number unknown, in his own name, it was confiscated by a people smuggler in [Country 2].
The applicant said his parents were born in the [decade] and his sister approximately [year]. He lived his village until approximately August 2012 and then went to Saigon to late March 2013. He said he worked on a family farm in his village from 2011 to August 2012 and then worked [in] [Saigon]. He was at school in [Village 1] until 2001 and then went to High School until 2008. He spent nearly two years in a Technical School [up] to July/August 2011.
The applicant supplied a certified translated copy of his birth certificate which confirms with the above name and date of birth. He also supplied his Vietnamese driver licence (issued in 2009) and citizenship card (issued in 2008) which also conform with this identity.
In his supporting statutory declaration, the applicant made the following claims:
The applicant fears that he will be imprisoned, beaten and/or killed by the Vietnamese authorities if he returns due to his religious and political activities; he has been beaten and imprisoned by the government before.
He lied about his identity, travel history and family at the arrival interview due to fear that the Vietnamese authorities would become aware of his presence in Australia;
He feared for his safety after he was interviewed by Vietnamese authorities while in detention in Perth. He believed that if they knew his identity they would take him back to Vietnam to punish him.
He always lived in [Village 1], his parents still live there, and his sister is married and lives in another town.
He stopped his technical studies because of the fear for his safety being a person of interest and because of the cost.
His Parish is [in] district [District 1], approximately 70% of which is Catholic.
In 2007 he became a youth group leader at the [parish]. The group used to help other parishes when their religious freedom was attacked, by protesting or photographing the violence committed by police and officials.
On 7 October 2011 the local government demolished a soccer field fence constructed
by the members of the [Parish], [a] Township which resulted in a
fight between the parishioners and the local government. The applicant and his group went to demonstrate with banners. Parishioners were being assaulted with sticks; there were about 1000 observers. They took photos which were posted on social media. The applicant
also sent photos to a reporter in Hanoi.
The next day he felt that he was being followed. He was told that teenagers and young children in his town were questioned about his whereabouts. He was scared for his safety, became less publicly active and would stay at home. Prominent Catholic activists such as a Hoang Nhu Duc had been being beaten and imprisoned for their activism.
On 17 December 2011 the parishioners [had] been planting trees along the
street and a group of thugs removed half of the planted trees. Confronted by parishioners, the thugs called the police and the parishioners were beaten and some taken into custody by the police. There is a sacred [shrine] . Christmas was also approaching. The applicant’s group again made banners and protested in the street where the trees had been planted. Parishioners beaten by the police with sicks and some were taken away. The applicant recorded this on a camera.
Thus the applicant became a person of interest to the local authorities. A week later he was on his way to Mass when three men stopped him and told him to stop his activities against the government and his country. The applicant said he would not stop. They hit him with a stick and kicked him. He still has a scar on his head. He woke up in the district hospital with a brain injury, he was there for a month.
The applicant was also involved in a charitable group [consisting] of members of five parishes in [a] diocese. They funded their activities by selling recycled products. This group also protests the repression of Catholicism by the Vietnamese government. On 1 July 2012, he was told that a priest attempting to celebrate Mass in a parishioner’s home in [District 2] which was one of the five parishes, where they had no Church. The police disrupted the service and destroyed the statues. On his way to provide support with 20 other members, they were stopped, their camera, mobile phones and banners were confiscated. They were taken to the police station, but managed to escape that evening.
The applicant decided to leave his country because of his fear of being imprisoned and
the ramification to his family due to his activities. He left for Saigon (Ho Chi Minh). He
heard from his mother that the authorities came to look for him at his house.
The applicant fears he will be beaten and imprisoned for his participation in protest activities against the Vietnamese government and for departing his country illegally.
He will not be allowed to practice his Catholic faith in Vietnam including attending Mass.
His family have been contacted by the Vietnamese authorities to persuade him to return and he fears for their safety.
The applicant also feared the Vietnamese government had access to his records and would know that he has sought asylum in Australia, and therefore complained about the Vietnamese government, because of the data breach that occurred relating to January 2014 detainees.
When he was in detention in Perth he had nightmares and saw a psychologist every three months, and weekly in Tasmania.
The applicant submitted the ASRC Vietnam Information Package covering relevantly the treatment of Christians including Catholics, political activists and protesters, failed asylum seekers, and the question of relocation.
With his second protection visa application in July 2020, the applicant submitted and relied on the above material. An interview with the applicant for this application was conducted on 16 October 2020 (“the protection interview”. The decision in the second protection visa application contains information on page 9 that at the protection interview the applicant added a claim that he sent photos of the Catholic demonstrations to a person in Viet Tan. He also denied (as recorded at page 10 of the decision) that he had said at the entry interview that he was not involved in any political activities. He also said that he had no physical or mental illness.
On 10 February 2023, the applicant provided to the Tribunal as constituted for the first review (i.e. the review of the second application), a number of untranslated documents in Vietnamese. On 15 February 2023, the applicant submitted certified translations as follows:
- A certificate of hospital admission signed on 10 February 2023 from a head physician at [District 1] Hospital. It indicates the applicant was admitted on 8 January 2012 for head trauma and remained hospitalised until 17 February 2012; and that his treatment period was lengthened for nearly two months.
- A sacrament certificate signed by Father [name] of the Catholic Church’s [diocese] on 6 February 2023, to regarding the applicant’s baptism and confirmation, which also states that he was a leader of a youth group from 2008 to 2013, representing five parishes.
- A letter by the priest from [a] parish in Nghe An province attesting to the applicant being a member of the parish, a leader of the youth group, and that he and others were beaten and detained by the authorities. It is dated 6 February 2023.
- An accompanying note by the applicant stating that his parents were unable to obtain the original doctor’s certificate. He also states that he has attached photographs of himself at a protest in front of the Victorian Parliament House on 14 May 2016. (These photos can no longer be extracted from the file).
The discrepancy between the applicant’s arrival interview, and subsequent claims, is information contained in the Delegate’s decision on the first application at the bottom of page 5 and overleaf on page 6. Further discrepancies referred to in the decision are as follows:
·On page 9, in reference to the protection interview, that he did not escape from arrest in July 2012, but was released.
·He was not beaten (resulting in the hospitalisation) but hit by a car.
·He gave inconsistent evidence about the length of time he was in hospital.

In support of the current review application the applicant made a statutory declaration dated 27 September 2024 reiterating that he is associated with Viet Tan and adding a new claim that he is associated with [Group 1] group via donations and participating in meetings and that he is named as a donor in the [website]. The applicant submitted a photo evidence book dated 26 September which includes reposted [social media] material regarding religious and Montagnard rights, including reposted Viet Tan posts, record of his participation in a [chat] group in July 2024 and a meeting on 22 September 2024, country information about the Montagnards and Viet Tan, support letters from Catholic priests in Melbourne, a letter from a member of Vietnamese Community in Australia dated 18 September 2024, stating that the applicant has participated in a range of events including human rights protests, two donation receipts dated July and September 2024 from [Group 1].
At the hearing the applicant confirmed that he was born on [date]. He said he gave a false name on arrival in Australia on the advice of someone on the boat. They said the Vietnamese authorities would be questioning him and would take him back to Vietnam. He also gave a false date of birth. The Department adjusted his age because they did not believe he was under 18. Asked why he claimed to be under 18, the applicant said someone told him it would help him get an education. When he was in the detention centre Vietnamese officials came and spoke to Vietnamese detainees, they said they were police.
The applicant said he never had adoptive parents in Laos and did not work on a fishing boat in [Country 1]. His father is a rice farmer in Vietnam. It was a small farm, enough only to support his parents, his sister and himself. His sister’s husband does not work because he injured himself in a fall from scaffolding. The applicant lived in his village except for when he was at technical school [from] 2009 to 2011. The applicant sends money to his mother. His family have not been bothered by the authorities since the applicant came to Australia.
There was no Mr and Mrs [name] and children. He was never in Laos. He just said that because he was scared. It was not true that he had never been in protests. Asked why he did not give the correct information at his arrival interview the applicant said he did not know about the refugee process. He wanted to study.
The Tribunal asked if the applicant had ever been in a vehicle accident. The applicant maintained that what happened in January 2012 was that when he went to Church [he] was stopped by 3 people who told him to stop his religious activities. He refused. They hit him with a stick until he fell down and then they kicked him. He was unconscious. He still has a scar on his head.
He went to work in a restaurant in Saigon and the people smuggler came in to eat. He asked the applicant if he wanted to go overseas. He got a passport for the applicant. But the applicant never even looked at it, it was held by the smugglers the whole time. He went straight from Vietnam to [Country 2].
The applicant said he left Vietnam because he was attending protests for the religious people. In October 2011 a church in another parish wanted to put up a fence but the Government prevented them. The applicant and six others [heard] about the protest in the morning and two hours later they were there with their banners. The police were spraying people and hitting them. They stayed all day. In December 2011 plants belonging to a priest in another parish were removed. Again they heard about the protest in the morning, it was about 50 minutes away. The applicant went with six people but not exactly the same six as before. Again they took photos and videos. The applicant said them to a journalist in Hanoi, the priest gave him the name. They were published, but were deleted on the orders of the government.
In [District 2] a service was disrupted by the authorities and a statue damaged. The applicant was with about 20 people this time, on the way to join the demonstration. He and about 4 others were arrested. They were handcuffed and put into a van, and taken to the local police station. The applicant was interrogated. He was the one with the camera equipment. He escaped in the afternoon when they left the door open. He joined up with some other fellow parishioners and made his way home. The others were released after a night. People came looking for him at home so he escaped to Saigon.
The applicant said he would still be of adverse interest to the authorities because of his role in the Youth Group and religious demonstrations because he ran away from Vietnam.
Regarding his involvement with Viet Tan in Australia, the Tribunal noted had the applicant had shared posts, but it may not be satisfied that this was done for a reason other than to support his protection claims, and even then, it may not be sufficient to establish a profile of interest to the Vietnamese authorities. The applicant said he had protested against a Vietnamese singer who was a Party member, and shared Viet Tan material, and he would be in trouble with the authorities in Vietnam.
He would also be in trouble because of his support for the Montagnards. Asked why this movement is of interest to him, the applicant said it was a small ethnic group and deserved to be treated equally. So he is a member of the organisation and supports them directly. The Tribunal commented that supporting ethnic equality in general may not explain his involvement as he is not a Montagnard himself.
In a post-hearing submission the representative summarised the applicant’s claims, referred to relevant country information and said that the applicant can be identified as an outspoken critic of the Vietnamese government due to his posting [social media] content from [Group 1] and Viet Tan. It is stated that he has a letter from [Group 1] verifying his participation since 2023, however this letter could not be extracted from the digital copy of the submission.
Country information
DFAT’s Country Information Report for Vietnam (2025) includes the following:
Approximately 6 million people identified as Catholic at the time of the 2019 census, making Catholicism officially the single-largest religion in Vietnam. Catholics live countrywide, with the highest concentration living in central Vietnam (Nghe An, Ha Tinh and Quang Binh provinces). In-country sources reported that Catholics were able to practise freely at registered churches and that registered Catholic communities were able to evangelise as of October 2023.
Relations between Vietnam and the Vatican have improved significantly in recent years. In December 2023, the Vatican appointed a resident papal representative – the first since Vietnam’s reunification in 1975, when diplomatic relations were severed. At the time of publication, Vietnam was the only Communist country with a resident pontifical envoy. High-level visits have occurred in both directions since 2023; Archbishop Paul Gallagher, the Vatican’s Secretary for Relations with States and International Organizations, visited Vietnam in April 2024, following an earlier visit to the Vatican by then-State President Thuong. The Vatican is required to consult the Government of Vietnam in the appointment of Catholic bishops and archbishops, although the Vatican does not require the government’s formal approval to make appointments.
As elsewhere in the world, most Catholics worship in masses at churches as part of local parishes, with several parishes organised as a diocese, headed by a bishop. According to in-country sources, Catholics worshipped freely and received sacraments such as the Eucharist, Reconciliation (confession) and Confirmation in registered churches. Some Catholics in remote areas of the country may have trouble accessing a priest due to their remoteness, although Catholic media have reported new parishes opening in remote areas of Vietnam, including in Bac Kan Province (northeast), in recent years.
Some communities, particularly outside of cities, worship in homes of believers (also known as house churches). Under the law, house churches, like any other form of collective religious activity, must be registered with the state. In-country sources reported in October 2023 that registered house churches could generally operate unhindered. In contrast, unregistered house churches may be targeted by the authorities (see Religion). In March 2023, according to Catholic media reporting, authorities entered and broke up a Mass in an unregistered house church in the Central Highlands. There does not appear to be a consistent pattern, though, and official attitudes toward unregistered house churches can vary from place to place.
The ‘Red Flag Association’, a militant movement reportedly under the direction of local government, has staged protests outside Catholic churches in the past. The Red Flag Association is reported to have disbanded in 2018. In-country sources, speaking in October 2023, said they were not aware of recent anti-Catholic protest activity in Vietnam and said relations between the Government of Vietnam and the Catholic Church were cordial. In-country sources reported that Catholics did not generally face societal discrimination and physical harm because of their religion, and that state protection was available where needed, as of October 2023.
DFAT assesses Catholics who belong to registered churches and are not politically active are free to worship, including in rural areas, and face a low risk of official discrimination. Catholics who participate in unregistered religious activity face a moderate risk of official discrimination in the form of police questioning and intimidation. Catholics who are perceived to challenge the interests and authority of the party or government, including by advocating for political, environmental or other causes the authorities deem sensitive, face a high risk of official discrimination in the form of harassment, surveillance, police questioning, intimidation, arrest and imprisonment, although this risk is not unique to Catholics or to people of faith more broadly (see Political Opinion). DFAT assesses Catholics face a low risk of societal discrimination on the basis of their religion.
…
The Criminal Code (2015) prohibits ‘organising, coercing [or] instigating illegal emigration for the purpose of opposing the people’s government’ and provides prison terms of between three and 20 years for organisers and participants. At the time of publication, DFAT was not aware of these provisions being used against failed asylum seekers who had returned from Australia.
Returnees from Australia who were part of a people smuggling venture may be interviewed by authorities on their return to Vietnam. DFAT understands this process generally takes between one and two hours, with a focus on obtaining information about the circumstances of their departure and the organisers of the venture. DFAT was not aware of returnees from Australia being held overnight for this purpose or being mistreated as part of this process. Authorities seek to distinguish between organisers and passengers of people smuggling ventures, and generally consider the latter victims. DFAT understands that returnees who were passengers in a people smuggling venture typically do not face criminal sanction on return, including in cases of multiple illegal departures. At worst, they will receive a fine (Decree 144, promulgated in December 2021, prescribes financial penalties of between VND3 million and VND5 million, or AUD190-315, for crossing national borders without following immigration procedures), although in-country sources reported in October 2024 that this may be waived.
… seeking asylum abroad is not a criminal offence. According to in-country sources, speaking in October 2023, people of this profile were processed by immigration authorities like anybody else. DFAT is not aware of failed asylum applicants in Australia being mistreated, subjected to special questioning or arrested on their return to Vietnam because they were critical of the party or government while in Australia. Returnees of this profile who continue to criticise the party or government after returning to Vietnam would likely experience official harassment, including monitoring and questioning, and potential arrest and prosecution, including under national security provisions of the Criminal Code (2015). This risk applies to all citizens of Vietnam, not just returnees.
As a proscribed entity, returnees with known affiliations to the Viet Tan, including through activity on social media and involvement in Viet Tan meetings and demonstrations, would be of interest to the authorities, and may encounter questioning and surveillance on return. If returnees of this profile continued these activities inside Vietnam, they would face a high risk of harassment, arrest, prosecution and imprisonment on national security grounds, like anybody else. Known Viet Tan members would face a high risk of questioning and arrest on return. DFAT is not aware of any failed asylum seekers in Australia being imprisoned on return in such circumstances.
FINDINGS AND REASONS
Based on the information in his application, the Tribunal finds that the applicant’s country of nationality is Vietnam. It finds that he was born in [year].
The applicant claims to fear harm based on his religion and political opinion.
The Tribunal accepts that the applicant is Catholic. However, the Tribunal does not accept that the applicant participated in or photographed religious protests including the [District 2] [incident].
The Tribunal is not satisfied that the applicant was in Vietnam during the years he claims to have been involved in religious protests. At the entry interview he gave a detailed and vivid account of a recent life with a quasi-foster family in Laos, including with youngsters he described as siblings. He then worked on a fishing boat, and came directly to Australia by boat without needing a passport. He had little connection with his home town, his parents or his biological sister. The applicant gave a false name and age, and could be understood to have done so because of the benefits of being a minor (he could go to school) and because he did not want to identify his real name. But he could not really explain at hearing why he would have made up a complete recent life and adopted/step family in Laos. The Tribunal finds the Laos account of his recent years most persuasive, and accepts it to be the truth.
The Tribunal finds, as expressed in his entry interview, that the applicant did not want to go back to his foster family, and envisaged better opportunities in Australia. He had no political involvement, arrests or detentions. He was not at the incidents in [two places], or attempted to go to [District 2]. He did not take photographs or film, and therefore did not send them to a journalist. He was not beaten up or detained by police, and no equipment or other items was confiscated from him. He was not, in the period in question, a Church youth group leader or involved in a Catholic charity.
The Tribunal’s findings above are reinforced by the inconsistencies in his evidence about the claimed incidents of detention and harm, as outlined at paragraph 32 above.
The Tribunal gives no weight to the letter from a parish priest in Vietnam, as it is dated years after the claimed events and echoes the applicant’s claims without establishing any personal contemporaneous awareness of the applicant’s presence at the events in question.
The applicant is an ordinary Catholic who can practise his religion without obstacle, and the Tribunal finds that this will be his situation on return to Vietnam for the foreseeable future. The country information indicates that as such, he faces no risk of discrimination or harm based on his religion.
Regarding his association with Viet Tan and [Group 1], and related social media posts, the applicant has no history of activism in Vietnam, and his general credibility is in doubt. The Tribunal is not satisfied that he engaged in these activities in Australia for a reason other than to strengthen his claim to be a refugee. The sur place activities must therefore be disregarded under s 5J(6).
DFAT reports that returned asylum seekers including boat arrivals may be interviewed on arrival, and may be fined if they left Vietnam illegally. Seeking asylum abroad is not a criminal offence, and DFAT is not aware of mistreatment or arrest of returned asylum seekers. Nor is there any evidence that people whose biographical information was accessed in the immigration detention data breach of 2014 have been harmed on return to Vietnam.
In summary, the Tribunal does not accept that the applicant faces a real chance of serious harm for any of the reasons specified in s 5J(1). The applicant therefore does not have a well-founded fear of persecution as required by s.5J(1). The Tribunal finds that the applicant is not a refugee as defined in s.5H(1).
The Tribunal is also not satisfied there are substantial grounds to believe that on return to Vietnam there is real risk that the applicant will suffer significant harm as defined in s 36(2A), warranting complementary protection.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.
Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Representative: Ms Kate Hoang
Date of hearing: 30 September 2024